Student v. Ipswich Public Schools – BSEA # 05-3855
COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Ipswich Public Schools BSEA # 05-3855
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the regulations promulgated under those statutes.
The request for Hearing was filed by the Parent on May 2, 2005. The Hearing was convened on June 7, 8 and 13, 2005 before Hearing Officer Rosa I. Figueroa.
The matter was then continued1 , at the request of the parties, for submission of written closing arguments. The Parent’s and the Ipswich Public Schools’ (hereinafter, “Ipswich”) closing arguments were received on August 10, 2005. The Record closed on that date.
Present during part or all of the Hearing were:
Student’s Mother Pro Se
Mary Gallant, Esq. Attorney for Ipswich
Diana Minton Director, Pupil Personnel Services, Ipswich
Margaret J. Madeiros Program Manager Winthrop School, Ipswich
Laurie Smith Educational Consultants of New England, Consultant
Meagan B. Malboeuf Regional Education Coordinator, Educational Consultants of New England
Melissa Gamble Attorney, Murphy, Hesse, Toomey & Lehane, LLP
Linda Labo Enhanced Pre-school Teacher, Ipswich
Kristine G. Lennon Speech & Language Pathologist, Ipswich
Carolyn Davis School Principal, Winthrop School, Ipswich
Andrea Lynch Parent’s friend
Sonya Lopes Court Reporter
Jonathan Lodi Court Reporter
Sarah Wilhite BSEA Legal Intern
The following witnesses testified via telephone conference call:
Rafael Castro, Ph.D. Neuropsychologist
Thomas Seman, M.D. Student’s primary care physician
Ronald Becker, M.D. Consulting Developmental Pediatrician
Parent’s Exhibits (hereinafter, “PE”) A, B, C and D, and Ipswich ’s Exhibits (hereinafter, “SE”) 1 through 92 and 94, 95, 96, 97 and 98, were admitted in evidence and were considered for the purpose of rendering this decision.
1. Whether Ipswich’s 2005-2006 proposed IEP is reasonably likely to offer Student a free appropriate public education (hereinafter, “FAPE”) in the least restrictive environment appropriate to meet his needs.
POSITION OF THE PARTIES:
Parent asserts that Student’s multiple disabilities place his life at risk. Student’s health issues conflicted with his ability to receive therapies that were sufficiently intense. Parent agrees with Dr. Seman’s view that Student’s asthma and eating disorder are the reasons why Student must receive his education in the home. Parent asserts that because Student’s education must be provided at home, Ipswich’s refusal to service him exclusively in that environment constitutes a denial of FAPE. Furthermore, Ipswich refused to consider the full range of Student’s educational needs failing to address his academic, social, communication, sensory, behavioral, daily living skills, organizational, and vocational needs and therefore the IEP offered for the period between February 2005 and January 2006 is inappropriate.
Parent states that Student requires a 30 to 40-hour per week program in the home, inclusive of occupational therapy with sensory integration, speech and language therapy and ABA services with discrete trial training and play therapy. School provides a setting to work on socialization and group activities while the home component can address the more individual and behavioral issues. To date, the services offered by Ipswich to Student have been inconsistent and are insufficient to meet Student’s needs. Ipswich has ignored the doctors’ recommendations and put Student’s family under a great deal of stress. Parent does not trust school personnel/ providers. Student requires an intensive program so that he can thrive in all areas of his development and live a happy healthy life. He is not ready to participate in a school program at this juncture. He needs to be taught in a single, consistent environment, namely the home. When his health and communication skills improve, then he can participate in a school program with proper supports. There is a very small window of opportunity to address Student’s needs and early intervention is the most important. Parent is committed to having Student receive the intensive services he requires to obtain a FAPE in the home, which is the only safe environment where he can make real progress.
Parent’s concerns also include inappropriate certification and expertise by the staff selected by Ipswich, and that there are too many different people working with Student.
Ipswich denies the allegations raised by Parent and asserts that it’s proposed IEP offers Student a FAPE in the least restrictive environment appropriate to meet all of his needs. It offers a combination of ABA therapy, occupational therapy, and speech and language therapy in a combination of home and school settings. In school, Student would spend the bulk of his time in a distraction free area, receiving individualized ABA, OT and speech services. He would be integrated with other preschool children for up to two hours per week with a 1:1 support staff in the Enhanced Pre-school program, but only when Student was able to tolerate this amount of inclusion. Student would be transitioned slowly into the school program. This proposed program would offer Student a typical school and community-based experience with other children. Additionally, Student would receive 10 additional hours of ABA in the home along with occupational therapy and speech and language therapy. Five hours of consultation weekly with the speech and OT professionals have been built into Student’s program offering parent training to assist with behavioral control and functional communication.
Ipswich asserts that it can accommodate all of Student’s health related issues in school, that its selected staff is properly qualified and that it has been ready, willing and able to offer Student the proposed program since February 2005. Any delay in provision of services has been due to Parent’s decision not to consent to the combination of school/home services offered in the IEP.
FINDINGS OF FACT
· Born on February 1, 2002, Student is a three-year-old resident of Ipswich who has been diagnosed with Pervasive Developmental Delay, Not Otherwise Specified (PDD-NOS) Autism Spectrum Disorder. (SE-26; PE-C) Student’s PDD-NOS impacts his speech, language, oral, gross and fine motor skills, behavioral and adaptive functioning as well as his social development. (SE-32; PE-A; SE-77; PE-A) Additionally, Student presents obsessive behaviors and hypothonia. (SE-32; PE-A; SE-55; PE-C) Student also has a history of “intense feeding difficulties with severe failure to thrive and a history of asthma.” (SE-32; SE-55; PE-C; SE-27; PE-A) The asthma appeared for the first time in October 2003 and caused Student to have a 2-day hospitalization in December 2003. It is managed with Albuterol 0.5 cc mixed with Pulmicort Respules 0.25 mg administered as a nebulizer twice a day, and extra Albuterol during the day when needed. (SE-58; PE-A; SE-79) Student was described as a happy little boy when allowed to engage in his own agenda. (SE-29; PE-40; Testimony of Parent) Parent is very committed to her son and has become very active in his programming. (SE-29; PE-B)
· Student lives with his mother and two siblings in Ipswich, in a neighborhood typically served by the Winthrop Elementary School. However, the proposed program is located at the Doyon Elementary School, the other public elementary school in Ipswich, located a short distance from Student’s home. (Testimony of Ms. Madeiros, Ms. Davis, Parent)
· Parent began early intervention services for Student on her own at home and used a provider from Beverly Hospital to provide Student the speech therapy. (SE-75; PE-A) Student also worked with a physical therapist in the home and after finding no improvement with provision of occupational therapy outside the home, Mother decided to provide this service at home as well. (SE-75; PE-A)
· Student’s developmental evaluation performed on May 20, 2004 when he was 27 months old found him functioning at the 9 month developmental level in social/ emotional interactions, 12 months in cognition; 17 months in gross motor development, 10 months in perceptual and fine motor skills, 12 months for self care, 14 months for feeding, 8 months for receptive communication and 9 months in expressive communication. (SE-81)
· In physical therapy, Student worked on emerging jumping skills, ball playing skills, improving his weight shifting to one leg, improving the ability to stand on one foot for 2 to 3 seconds, walking up and down the stairs with rail and steping to pattern with emerging reciprocal pattern, and would play in a variety of developmental positions including kneeling and prone for increased periods of time. (SE-80)
· At the age of two, Student began receiving early intervention services from his early intervention program, BEACON Services (BEACON) and Educational Consultants of New England (ECN). (SE-29; PE-B) In May 2004 ECN began to provide 8 hours per week of a combination ABA and floor time. (SE-29; PE-B) Meagan Malboeuf, M. Ed., (SE-85) of ECN, reported that at the time ECN began to offer services Student was unable to communicate his basic needs, had a very difficult time sitting, attending to any specific task or imitating the actions of others and made only fleeting eye contact with others. (SE-29; PE-B; SE-77) He also engaged in self-stimulatory behaviors and looked at lights and fans frequently. (SE-29; PE-B) Student was not able to eat solid foods which caused him to experience weight loss and severe constipation. The feeding issues began to alleviate in September 2004. (SE-29; PE-B) In general Student presented few disruptive behaviors, which emerged when he was tired. When he became upset he had great difficulty in calming himself and often needed his mother’s comfort to relax. (SE-29; PE-B)
· According to Mother, by December 2004, Student was receiving a total of 40 hours per week of home-based programming through Cape Ann Early Intervention. (SE-55; PE-C) The services according to her, broke down as follows: 26 hours per week of ABA therapy through BEACON Services; 10 hours of ABA/Play therapy through ECN; 2 hours of language therapy per week and 1 hour of occupational therapy by early intervention. (SE-55; PE-C) According to Leysiee Ruiz, behavioral educator with BEACON Services, who prepared the Behavioral Education Assessment and Consultation quarterly report for the month of August 2004, Student had started to receive between 8 and 11 hours of 1:1 instruction with a behavioral educator during August 2004 as well as occupational and speech therapy through Cape Ann Early Intervention. (SE-65; PE-B) In her August 2004 report Ms. Ruiz further states that it was intended that Student’s ABA services increase to 18 hours per week starting on September 20, 2004. (SE-65; PE-B) However, BEACON Services’ November 23 rd report stated that Student had started to receive 17 hours of ABA in November 2004. (SE-57; PE-B)
· Dr. Ronald Becker, Children’s Hospital Developmental Medicine Center, reported in May 2004 that Student was engaging in unusual behavior which included being attracted to lights, engaging in self-stimulating behavior and seemed fascinated by ceiling fans which, given the rest of the history, was consistent with a diagnosis of Pervasive Developmental Disorder-Not Otherwise Specified. (SE-45) Dr. Becker’s diagnosis was later found to be consistent with the observations and results of an evaluation performed in October 2004 at the Child and Family Project at the Boston University School of Medicine when Student was administered the Mullen Scales of Early Learning, the Vineland Adaptive Behavior Scale and the MacArthur Communication Development Inventory. (SE-45) Dr. Becker saw Student again on July 16, 2004. (SE-67; PE-A) At the time of this evaluation Student was receiving three sessions two hours each per week of ABA therapy in the home. Student was taking four cans of Pediasure with fiber per day and Generalac, prescribed by Dr. Adrienne Scheich, gastroenterologist, and Sharon Weston, M.S. RD, L.D., nutritionist, at Children’s Hospital, to address the weight loss and constipation issues resulting from Student’s feeding issues. (SE-67; SE-69; SE-70; SE-71; SE-75; PE-A) Parent reported that Student was able to communicate his needs and wants by taking an adult by the hand and bringing the adult close to the object he desired. It was further reported that on occasion Student was able to interact for up to ten minutes with his older brother and up to 30 minutes with his mother. (SE-67; PE-A) Following the visit on July 16 th , Dr. Becker recommended that Student have a repeat thyroid screen, that Parent ask Dr. Scheich if a KUB was warranted, and that an audiologic exam be performed. (SE-67; PE-A)
· Dr. Norberto Alvarez, neurologist at Children’s Hospital, recommended that Student be evaluated by a specialist in eating disorders in children with autism, following a telephone conversation with Parent on June 30, 2004. (SE-73; PE-A) By Parental report Student was receiving 6 hours of 1:1 services from a behavioral educator and 20 hours with a different provider, and was about to begin to receive one hour of occupational therapy per week. (SE-73; PE-A) Student would also receive speech therapy and physical therapy. (SE-75; PE-A) Dr. Alvarez noted in his letter that Student had no difficulty adapting to the different service providers, he seemed happy and showed no fear when he had to do the therapies. (SE-73; PE-A)
· Leysiee Ruiz, behavioral educator with of Behavioral Education, Assessment and Consultation, Inc., BEACON Services, performed an initial evaluation of Student on June 29, 2004. (SE-74; PE-B) Student had been referred to BEACON Services by Cape Ann Early Intervention. Student was also receiving occupational and speech therapy from The New England Center for Children. During the evaluation Student displayed fair visual attending skills to preferred items and activities and seemed to enjoy a variety of sounds associated with music, but his sustained attention to verbal stimuli was limited. (SE-74; PE-B) He did not look when his name was called except on rare occasions, it was very difficult to get him to respond to verbal cues while he was playing with a preferred toy, and he could not follow one-step instructions reliably. On occasion he communicated his needs by gesturing, leading someone by the hand or handing the object to someone. He also demonstrated difficulty following an imposed schedule, exhibited tantrums and complaining behavior when denied access to something he desired and had difficulty complying with limits and demands. (SE-74; PE-B) Cognitively, he lacked understanding of instructional language, but was easily engaged in age appropriate tasks. He was a curious child who enjoyed exploring and physically manipulating new toys but his fine motor skills were delayed. Student was not yet toilet trained. (SE-74; PE-B) Ms. Ruiz recommended continuation of the 1:1 instruction using discrete trial and natural environment training, in a setting that was free from distraction. (SE-74; PE-B) On July 7, 2004, Ms. Ruiz prepared goals and objectives regarding Student’s ABA service plan. (SE-72) The goals in this plan addressed skills in the areas of social/ emotional behavior, expressive/receptive language and functional communication skills (using Phase I through III of PECS), cognitive development, motor and motor planning skills, increasing the ability to attend to auditory and visual stimuli, striving for an 80% success rate in the various tasks within each goal. (SE-73; PE-A)
· On August 9, 2004, Dr. Thomas M. Seman of North Shore Pediatrics recommended that Student continue his evaluation and therapy with a feeding and nutrition therapist to address his feeding issues and continue to receive the ABA therapy with a behavioral therapist to address his other developmental, communication and socialization difficulties. (SE-66; PE-A)
· Student was evaluated by Dr. Norberto Alvarez on September 22, 2004. (SE-62; PE-A) Dr. Alvarez stated that he had noticed marked improvement in Student’s condition since Student started to receive very intensive home-based early intervention services. He supported Student’s participation in a school program as it would be a great opportunity to work on socialization skills, but was concerned that any disruption to the then- current arrangements could result in regression. (SE-62; PE-A) Dr. Alvarez recommended that Student participate in a pre-school program for up to two or three hours per day, and continue with the home-based program the rest of the day. (SE-62; PE-A)
· Also on September 22 nd , Margaret Madeiros, Program Manager at the Winthrop School in Ipswich (SE-83), wrote to Parent thanking her for meeting with the Ipswich staff and offering to copy Student’s records so that the staff could review the documents prior to observing Student. (SE-63) Kristine Glennon (Speech and Language Pathologist, SE-92), Heather Denne (OTR/service coordinator), Peggi Fabbri (Enhanced Pre-school teaching assistant) and Linda Labo (Enhanced Pre-school teacher, SE-94; SE-82) had been present at the meeting held on September 20, 2004. (SE-63; SE-64)
· On or about October 4, 2004 Student was hospitalized due to an asthma attack. (SE-47)
· On October 15, 2004, Thomas M. Seman, MD, wrote a letter supporting Parent’s choice of Project Child in Beverly, MA, as a less aggressive, effective and less expensive form of therapy to address Student’s nutritional, behavioral and respiratory issues. (SE-61; PE-A) At Project Child the therapy consists of using music as a way to get children to develop vocabulary, syntax, appropriate communication and social interaction skills. According to Parent, Student had demonstrated growth in these areas since he began participation at Project Child. As a result, Sr. Seman opined that said therapy was medically necessary to address Student’s needs and as such, should be funded. (SE-61; PE-A)
· Alice Carter, Ph.D., Gretchen Shuman, M.Ed., Anneliese Bass, B.A., Research Assistant, Mary Beth Kadlec, Sc.D., O.T.R./L and Helen Tager-Flusberg, Ph.D., of the Child and Family Project, NIH Autism Research Center for Excellence, STAART Program at the Boston University School of Medicine conducted a developmental and diagnostic assessment of Student on October 12 and 16, 2004. (SE-60; PE-B) The purpose of the assessment was to identify Student’s strengths and weaknesses, but not to make recommendations. ( Id. ) Student was found to meet the diagnostic criteria for autism spectrum disorder of the AADI-R and autism on the ADOS, consistent with previous clinical diagnosis of PDD-NOS. (SE-60; PE-B) The evaluators administered the Mullen Scale of Early Learning (Mullen), to assess gross motor, visual reception, fine motor, receptive and expressive language skills; interviewed Parent using the Vineland Adaptive Behavior Scale which assesses every day life functioning; and, requested that Parent complete the McArthur Communication Development Inventory to assess Student’s language abilities. (SE-60; PE-B) In the Mullen, Student’s T score was 20 across the board giving an age equivalence of 14 months for gross motor skills, a 6 month equivalence in visual reception, a 9 month equivalence in fine motor, a 6 month equivalence for receptive language skills and a 5 month equivalence for expressive language skills. (SE-60; PE-B) In the Vineland Adaptive Behavior Scale, which uses a mean of 100 and a standard deviation of 15, Student scored a 58 for communication (11 months of age) and in daily living skills (13 months of age), a 59 in socialization skills (10 months of age) and a 63 in motor skills (17 months). (SE-60; PE-B) The McArthur Communication Development Inventory, a parent-report measure used to ascertain a child’s emerging skills, showed that regarding words understood Student functioned at the 8 month level, in phrases understood at a 10 month level, words produced was at a 10 month level and gestures at the 8 month age equivalency level. (SE-60; PE-B) The results of these evaluations showed that Student presents socialization and communication delay, as well as a delay in visual reception and language skills. However, he appeared to have a strength in gross motor skills. (SE-60; SE-45; PE-B)
· By November 5, 2004, Parent had only forwarded the developmental medicine visit report to Ipswich. (SE-56) Ipswich however, sought additional information before they performed their own evaluation of Student. (SE-56)
· Ipswich forwarded Parent a consent form to perform evaluations on November 10 and another on 23, 2004. (SE-54; SE-52; SE-53) Consent was sought for a full educational assessment including permission to review records and permission to speak to service providers and perform an observation of Student in the home. (SE-52; SE-53) Parent met with Ms. Caroline Davis, School Principal, at the Winthrop School in Ipswich, on or about November 23, 2004, and it was after this meeting that Parent consented to partial evaluations of Student. (PE-C) Parent consented only to the home visit as she was concerned that a more “hands on” type of evaluation may result in a stress induced asthma attack. (SE-52; SE-53; PE-C) Parent had previously written on November 15, 2004, informing Ipswich that Student would be evaluated by Dr. Castro at Children’s Hospital and that he would make appropriate recommendations for programming. (SE-55; PE-C) In this letter she also requested that Ipswich maintain the 40 hours per week home program that Student was receiving from early intervention, when he turned three in February 2005. (SE-55; PE-C) She further requested that Student’s therapists accompany him to school for the portions of his program that involved mainstreaming. (SE-55; PE-C)
· Leysiee Ruiz, behavioral educator with BEACON Services, prepared Behavioral Education Assessment and Consultation quarterly reports in August, on November 4, November 23, 2004 and December’s report, which was issued on January 4, 2005. (SE-57; SE-59; SE-65; PE-B) The reports state that Student demonstrated poor sustained attention to verbal stimuli, had poor eye contact and demonstrated complaint behavior such as crying and leaving his seat at the table when physically prompted to look. With preferred activities and toys however, he displayed fair visual attention. (SE-57; SE-59; PE-B) With therapy he began to make the “e” and the “a” sounds. The ABA therapy also addressed the feeding issues and it was noted that Student was beginning to try new solid foods such as goldfish crackers, teddy grams and Lucky Charms cereal. (SE-57; PE-B) At the beginning, Student was only eating ¼ of a jar of fruit, which also increased to two jars by August 2004. (SE-59; SE-65; PE-B) Ms. Ruiz noted that Student was progressing in all targeted areas of his ABA therapy and it was desired that he transfer the skills he learned in the 1:1 session to other settings including family members and the community. (SE-57; PE-B) According to Ms. Ruiz, Student received 17 hours of ABA from ABE and 8 additional hours from ECN. (SE-57; PE-B; SE-59; PE-B) By November 2004, Student’s congestion and asthma had improved and he appeared happy and energetic during the sessions. (SE-57; PE-B)
· On November 18, 2004, Rafael Castro, Ph.D., and Elona Suli, M.D., from the Children’s Evaluation Center, performed a neuropsychological evaluation of Student. (SE-58; PE-A) The impressions contained in their report were based on clinical observation, testing, review of Student’s history and an interview with Mother. (SE-58; PE-A) At the time of this evaluation Student’s specialized services were home-based. During the evaluation Student “displayed a pronounced level of stereotypical behaviors such as walking around in circles and shaking toys.” (SE-58; PE-A) Student also engaged in atypical and self-stimulatory behaviors. He was attracted to lights and objects that spin. He had great difficulty participating in tabletop activities and made constant repetitive vocalizations without communicative intent and produced no words. When engaged in an unproductive activity he required his mother to physically redirect him. These behaviors made it difficult for him to sustain attention and engage in structured tasks, communication or follow routines consistently. (SE-58; PE-A) Student’s response to spoken language or to calling his name was variable and quite unreliable. He responded positively to being tickled by his mother and to other displays of physical affection, but overall reciprocal interactions and eye contact were fleeting. (SE-58; PE-A) Dr. Castro’s findings were consistent with those of a previous evaluation, which used the Carter & Tager-Flusberg test finding Student’s functioning to fall notably below the one-year level with verbal and visual-spatial abilities falling within the five to six month age level. (SE-58; PE-A) His acquisition of communicative skills, including expressive and receptive language skills was also quite delayed. He was only able to vocalize some vowels and gesture “no” inconsistently. Typically he would pull adults to get what he wanted, got it himself or showed an object to an adult. The PECS technique had been introduced a month before as a means of communication. Reportedly, he enjoyed activities which involved gross motor skills such as chasing and running. (SE-58; PE-A) Regarding daily living skills, Student required adult assistance in getting dressed, was not yet toilet trained and mostly used his fingers to feed himself. In sum, Student presented the hallmark criteria for a diagnosis of Autism Spectrum Disorder. (SE-58; PE-A) He was responsive to highly structured, calm, positive and caring environments and was generally enthusiastic about activities involving music. Dr. Castro found Student to present as a vulnerable child who required intensive, specialized, coordinated services. He reported that Student required a 30-hour per week comprehensive individualized program which followed applied behavior analysis principles with the vast majority of the time spent on discrete trial teaching. (SE-58; PE-A) He recommended systematic collection of data as well as planned re-assessment of curricula to ascertain when Student acquires skills at a level that is satisfactory. Dr. Castro stated that service providers should have training and experience in ABA techniques and should be supervised by at least a Master’s level staff with credentials, expertise and experience in the design of programming through ABA principles to address social and communication disorders. The intervention approach should target the following areas intensely: regulation of attention and behavior; development of language and communication skills; expansion of social abilities, and increased independence with respect to daily living skills.
Dr. Castro indicated that it was imperative to work on foundational skills that served as the basis for the learning process such as sustaining effort, working on tabletop activities, directing attention, making eye contact and making use of joint attention. (SE-58; PE-A) Functional communication should be encouraged through verbal and augmentative means and fine and gross motor skill development should be addressed by the occupational and physical therapists through the design and implementation of his services. A step by step teaching methodology was recommended for toilet training, general hygiene routines, dressing and eating. (SE-58; PE-A) Dr. Castro also stressed the need for consistency across all settings and encouraged providing assistance to Student’s parents through direct services and consultation. Services would need to be provided year round at the same level of intensity and staffing that was provided during the regular school year with breaks of no more than 10 consecutive days. A re-evaluation was recommended within 6 to 12 months to re-assess developmental functioning and progress and modify Student’s program as his needs changed over time. (SE-58; PE-A)
· Diana W. Minton, Director of Pupil Personnel Services in Ipswich, wrote to Parent on December 3, 2004 asking for her permission to have Ipswich staff observe Student so that they could better plan for an appropriate program as Student would become eligible to receive special education services through Ipswich when he turned 3 years of age. (SE-50) Ms. Minton encouraged Mother to allow the evaluators an opportunity to evaluate Student to the fullest extent possible and to work cooperatively and form a strong working relationship with the Ipswich team. (SE-50)
· Colleen Mulkerin (SE-98), RPT, and Barbara Smith (SE-97), OTR, of Ipswich conducted a home visit on December 6, 2004. (SE-48) Student and the ABA provider were also present during the visit and Parent joined them half way through the session. Student’s tolerance for sitting down at a table and engaging in an activity was approximately 10 minutes with a great deal of squirming, and he required full physical assistance in performing activities such as looking, clapping, and putting hands down. (SE-48) Student was noted to turn his head vigorously when he did not wish to engage in an activity. He could walk independently, run around in small circles, sit and get up from a chair independently. Balance was adequate. (SE-48) Shaking of the left hand was also observed on occasion as a self- stimulating behavior. (SE-49)
· Barbara Smith’s occupational therapy report stated that no imitation of movement was observed and that hand over hand assistance was required for Student to complete tasks at the table during the ABA session observed on December 4, 2004. (SE-51) He was observed to point and reach for toys and was able to retrieve his bottle, located in a separate room. According to Parent, Student did not demonstrate sensory defensiveness and enjoyed rough housing play. (SE-51) Ms. Smith recommended occupational therapy consultation to the service provider staff to incorporate multi-sensory fine motor activities and other sensory-based activities that are developmentally appropriate. The goal would be to increase Student’s visual attention and the length of time he can spend in independent hand use. (SE-54)
· Kristine Glennon, Linda Labo and Margaret Madeiros, of Ipswich, observed Student in the home on December 13, 2005. (SE-49) Student cried during the entire ABA session, showing no sign of self-regulation, and appeared tired. At one point during the session he went to his blanket on the floor and fell asleep after being prompted to sign “all done.” Parent reported that Student was sick on that date. (SE-49) The behavioral educator reported that it had been difficult to find behavioral reinforcers for Student. At that time these included: Teddy Grahams, Goldfish, “bubba” and tickles, but his response to them was inconsistent. His diet was very limited and included only: Teddy Grahams, Goldfish, Lucky Charms, crackers, baby fruit and he would take small bites of McDonald’s’ hamburgers. (SE-49) He could feed himself and allowed Mother to cut his hair and brush his teeth. Emotions such as a smiling, laughing or crying were observed when he felt better and he also demonstrated affection. The document prepared by the Ipswich personnel stated that Student had made “no progress in six months”, a statement they attributed to the behavioral educator. (SE-49)
· On December 15, 2004, Ipswich notified Parent and other invitees that the Team would be convened in January 2005 to discuss Student’s eligibility, to develop an IEP and make the placement determination. (SE-46) While the original date, January 7, was changed, the Team convened on January 11, 2005.
· On December 20 and 22, 2004, Scott A. Howard, clinical neuropsychologist, performed an observation and made recommendations for treatment of Student. (SE-45) During the first observation Student was observed during a 45 minute ABA session with Ms. Ruiz of BEACON. ( Id .) According to Ms. Ruiz, Student had made very limited progress regarding his ability to remember and build on learned skills. (SE-45) During the observation Student appeared self-absorbed, distracted by external unrelated stimuli and unable to focus on the task at hand. At the time of this evaluation, Student was receiving 25 hours of ABA services per week from BEACON and 10 additional hours per week by ECN. Dr. Howard also observed the Enhanced Pre-school program at the Doyon School in Ipswich. The program was integrated with three other students who presented symptoms of autism and two typically developing students who served as role models. (SE-45) According to Dr. Howard, while viewing the Enhanced Pre-school program on December 22, 2005 he observed an ABA session with one of the students in the program proposed for Student. He reported that while the student seemed to be functioning at a level more advanced than Student, many of the skills and activities were similar and consistent with the ones Student was working on in terms of skill building. (SE-45) In Dr. Howard’s opinion, the Enhanced Pre-school program was likely to be successful for Student so long as Student attended the program regularly. Additionally, Student would benefit from the social component in the program, which he was not observed to be experiencing at home. (SE-45) Dr. Howard opined that the early childhood program was providing some benefit to Student, but he still required intensive work in very rudimentary skill building. ( Id. )
· Dr. Ronald E. Becker, wrote on January 5, 2005, in response to inquiries by Parent regarding the result of evaluations in light of Dr. Becker’s initial assessment of Student. (SE-43: PE-A) He opined that any transition to a school program should be undertaken very gradually to avoid medical regression regarding Student’s gastrointestinal and reduced oral intake issues. (SE-43: PE-A) Dr. Becker stressed the importance of maintaining a high degree of consistency and sameness in Student’s routine, which would have to be enforced across multiple settings to include the home. (SE-43: PE-A) He advocated for home-based services to be delivered as part of Student’s educational program. (SE-43: PE-A)
· Janelle Pickens, MS, CCC/SLP, of Cape Ann Early Intervention (CAEI) provided a speech and language summary on January 6, 2005. (SE-42; PE-B) CAEI provided speech and language services to Student since July 2004. He was found to be primarily non-verbal but made several sounds and could say “mama”. He imitated vowel sounds, said “m” for “more” if provided strong visual cues and said “apple”. Also, he could inconsistently sign for “more.” Picture communication was introduced by CAEI. For instance, when shown the picture of an item, Student would walk to the object thereby demonstrating whether he recognized the object. (SE-42; PE-B) Ms. Pickens noted that Student’s eye contact and facial expressions increased during sensory activities and when he heard familiar songs. Auditory comprehension skills were difficult to assess given Student’s difficulties with pragmatic language. She noted that comprehension improved when Student was given visual cues such as the pictures as well as with familiar routines where expectations are known. (SE-42; PE-B) She recommended that intensive speech therapy be continued and noted that Student had made significant gains during the sessions with ECN. (SE-42; PE-B)
· Meagan Malboeuf, M. Ed., of ECN, stated in her discharge summary that after approximately six months, Student was able to sign “more”, could request his Pediasure by going to the appropriate cabinet and making a sound, was working on the direction “come here” and on identifying familiar people. (SE-29; PE-B) He demonstrated some interest in books but required full prompts to point to pictures, he improved spontaneous eye-contact, was working on putting a block in a bucket, stacking blocks and clapping his hands, completing tasks, pushing buttons on cause and effect type toys, all of these with prompting. (SE-29; PE-B) Regarding sensory processing, he required frequent breaks and worked well when given stimulation prior to and during therapy and during activities, which required him to sit. He responded well to tickles, big hugs, being chased, swinging, jumping and crashing. (SE-29; PE-B) Ms. Malboeuf remarked that therapy should include parent training for purposes of generalization. ( Id .)
· Student’s Team met on January 11, 2005, and he was found to be eligible to receive special education services. (SE-37; SE-39) The Team meeting invitation was mailed to Parents on January 5, 2005. (SE-44) Parent and her attorney were present as well as 18 other staff members from Ipswich, ECN and BEACON. (SE-40) The service delivery grid in this IEP called for one-hour of speech and language, one-hour ABA by ECN and a half hour of occupational therapy consultation services per week. It also offered 10 hours per week of ABA services in the home and 25 hours per week of additional services in school. (SE-37) The direct services in the school environment included two 15 minute ABA communication sessions by the speech and language therapist; 10 hours per week ABA sessions (table time) by a preschool staff and 14.5 hours per week of ABA in a natural pre-school environment. (SE-37) At the time the initial IEP was discussed, Student had not yet undergone all of the evaluations by the Ipswich staff and therefore, the Team lacked sufficient evaluative information to develop a complete IEP. Stressing the need for further evaluations, the Team prepared an extended evaluation to obtain the necessary information regarding speech and language, cognitive levels, physical and occupational therapy, all of which would be completed expeditiously. (SE-38; Testimony of Ms. Madeiros) Parent accepted the recommendation for extended evaluation on January 13, 2005. (SE-38) A second IEP meeting was scheduled for January 28, 2005, to discuss the result of the evaluations. (SE-26; PE-C) It is this IEP that is the subject of this proceeding.
· Carolyn Davis spoke to Mother and strongly recommended that Student be evaluated by ECN so that specific educational programming could be designed for Student and available to begin in February 2005 when Student turned three years of age. Mother consented and Laurie Smith, ECN’s Director of Education, performed the evaluation. (SE-33; Testimony of Ms. Smith, Mother)
· Student’s developmental evaluation was performed by Laurie E. Smith on January 11 and 18, 2005. (SE-33) She found Student’s skills to be as follows: cognitive skills in the 8 to 10 months age range with a scatter beyond; social emotional skills in the 7 to 8 months range; language skills in the 5to 6 months range; fine motor skills in the 9 to 10 months with a scatter beyond; and self-help skills at 9 months equivalent. (SE-33) Student could smile, vocalize and reach for Mother, he looked at and reached for toys and would also turn, look for dropped toys and resist removal of a preferred toy. He discriminated among strangers, anticipated food preparation, banged and shook toys, reached persistently for a toy and could uncover them if hidden. He also repeated an action that produced noise, pulled a string to obtain a bottle and could insert pegged round puzzles. (SE-33) In addition to signing for “more” he used other compensatory gestures to communicate such as putting his arms out for a hug or pushing an item away to indicate “no.” He could hold, bite and chew a cracker, could pull off his socks, complete one short play sequence, scan with his eyes to show preference, imitate several novel adult actions, problem solve and he would place an adult’s hand on a item to request help. (SE-33) Based on these and other observations, Ms. Smith recommended that Student participate in a year round program specifically designed to address Autism in a group no larger than 6 children to 3 teachers with experience and training with children in the Autism spectrum, and a 1:1 assigned to Student throughout the day. The team should have access to a consultant that specializes in working with children with Autism. (SE-33) Ms. Smith indicated that Student’s program should provide home-based services, occupational services, physical therapy, intensive teaching using the principles of Applied Behavioral Analysis (ABA) and opportunities for inclusion. (SE-33) The format for the 1:1 teaching session should be:
· 5 minutes of warm up to include sensory activities and floor time (relationship building and “Manding”);
· 15 minutes of DTT/ or therapy;
· 5 minutes of Sensory Activities/ Floortime;
· 15 minutes of DTT/or therapy;
· 5 minutes of Sensory Activities/ Floortime
Ms. Smith recommended that these direct services be provided in an environment relatively free of distraction until the skills are mastered and then he must have opportunities to generalize to other settings at home and in school. (SE-33) Ms. Smith also recommended that a reinforcer survey be conducted as it was difficult to identify items that were highly motivating to Student to use as reinforcers during the work sessions. Photographs and sign language would be used to act as a bridge to spoken language, decrease frustration and teach the power of communication. She recommended that Student spend between 9:00 a.m. and 1:00 p.m. at the Doyon School from Tuesday through Friday with a combination of direct services by the ECN provider and the Ipswich staff, and 9:00 a.m. and 11:00 a.m. with the ECN staff on Mondays at the Doyon School. (SE-33) The 1:1 intensive direct therapy would be provided during the first two hours each day (10 hours per week) and intensive direct services for 1 hour combined with 30 minutes of inclusion in the preschool setting on Tuesday through Friday between 11:00 a.m. and 1:00 p.m. The remaining 10 hours of intensive training services would continue to be provided in the home some time between 3:15 p.m. and 5:15 p.m. with a break approximately between 12:00 noon and 3:15 p.m. for Student to spend with his mother, eat lunch and prepare for the afternoon session. The proposed times varied somewhat on certain days. (SE-33)
· Collen Mulkerin, RTP, from Ipswich, performed the physical therapy evaluation on January 13, 2005. (SE-35) Through the use of the HELP assessment checklist, a curriculum-based assessment system, Ms. Mulkerin determined that Student’s gross motor abilities fell in the 15 to 18 month age range with some scattered skills in the 20 to 23 month range. In her opinion, some skills could be hindered by his difficulties imitating movement and following directions. In order to stimulate gross motor growth, Ms. Mulkerin recommended physical therapy consultation to the staff and family to incorporate appropriate activities into Student’s program. (SE-35)
· On January 13, 2005, Barbara Smith, OTR/L in Ipswich, performed an occupational therapy evaluation of Student using the Hawaii Early Learning Profile (HELP) to determine his fine motor skills approximate age level. (SE-36) Ms. Smith found Student’s skills to fall within the eight to nine month level. He seemed happy, alert and affectionate as he enjoyed close physical contact with familiar people. He was noted to run around the room while shaking a toy during unstructured times and seemed to enjoy other physical activities such as being lifted, using swings and other playground equipment. He did not imitate movement but was noted to sign spontaneously for “more.” (SE-36) During the evaluation, Student showed a preference for auditory toys, seemed motivated by bright lights and demonstrated awareness of objects that were out of his view. He also demonstrated emerging functional hand use. Student was able to sit for short periods of time to engage in activities that called for use of fine motor skills, and could feed himself small finger foods such as the Gold fish crackers. (SE-36) Ms. Smith noted that eye contact was poor as was object exploration. She recommended that a sensory diet be implemented through weekly occupational therapy consultation to family and teachers, to encourage visual attention, visual tracking, increase body awareness and development of motor skills. (SE-36)
· On January 21, 2005, Dr. Ronald Becker wrote a letter of medical necessity recommending that Student continue to take the Pediasure with fiber to address the constipation issues. (PE-A)
· Thomas Seman, MD, FAAP, wrote a letter to Parent on January 24, 2005. (SE-32; PE-A) The letter and recommendations were based on information provided by Parent during a telephone conversation with Dr. Seman on January 17 th . (SE-32; PE-A) Dr. Seman remarked that given Student’s diagnosis and medical issues, therapies should be provided in an environment where Student felt comfortable. (SE-32; PE-A) He explained that in children like Student their ability to deal with stressors was severely impaired resulting in decompensating or shutting down to the outside world to any intervention or therapy perceived as stressful. Introduction to social situations should be done in a gradual manner. The location for provision of services should be a fairly quiet and private space to minimize distractibility and anxiety with some occasional exposure to social situations. (SE-32; PE-A) He therefore concluded that Student’s services should be provided in the home with a limited introduction to the social world at school, limited to no more than four hours per week in a classroom with appropriately trained teachers/ therapists for Student and a ratio of no more than 1 to 2. The amount of exposure to social situations should be decreased if Student is unable to tolerate it. (SE-32; PE-A)
· On January 28, 2005, Kristine Glennon, Speech and Language Pathologist in Ipswich, performed a speech and language assessment of Student in preparation for his transition into Ipswich’s preschool program. (SE-30) She observed Student on two occasions, one on December 13, 2004 with a behavioral educator from Beacon during which Student was sick and the other observation was performed on January 20, 2005, during a two-hour therapy session provided by ECN staff. (SE-30) Ms. Glennon’s observations of Student’s abilities were consistent with the description provided by Ms. Malboeuf. Ms. Glennon found Student to demonstrate scattered communication skills, which fell within the birth to eleven months range in this 2.11-month old child. At the time of her observation, most of the communication skills used with Student attempted to regulate his physical needs. During the preceding six weeks the staff was engaging him in picture and gesture communication. (SE-30) Student’s eye contact and attempts to reach for objects was increasing during sensory activities. Ms. Glennon recommended continued communication skills support and speech and language intervention. She stressed that the interventions should be embedded in Student’s daily routines so as to maximize teaching and learning throughout the day in natural environments. Service delivery would consist of two hours per week consultation and collaboration with staff and family as well as to prepare materials, and two hours per week of direct services to be divided between school and home working with all those involved in servicing Student. (SE-30)
· Ms. Ruiz’s discharge report from BEACON services, dated January 28, 2005, states that Student had made progress over the previous six months. (PE-B) His eye contact had improved, he would sit for 5 to 10 minutes and worked for a few reinforcers (Teddy grams, toys, tickles, social praise and books), he displayed fair visual attention to preferred items, and displayed awareness when his name was called and when new people visited. He communicated his needs through gesturing, leading and handing, reached for preferred foods and signed for “more”, and was beginning to use the PECS communication system. (PE-B) He still exhibited temper tantrums and complaining behaviors to access preferred toys or when demands were placed on him. He also had difficulty following an imposed schedule, and demonstrated frustration by whining, crying and trying to escape from the work-table. He made eye contact when people said “hi” or “bye” but could not respond. (PE-B) Student lacked understanding of instructional language such as “do this”, “match” or “touch.” He could not match identical toys or pictures but could imitate gross motor actions such as building two block structures, pressing buttons, and pushing a car. He could not clap, jump, blow or wave, identify any body part or complete a puzzle independently. In activities of daily living Student cooperated with getting dressed, brushing his teeth and other activities done with Mother. Mother reported that she could “take him into the community with none to little difficulty.” (PE-B) He was able to complete two activities and then took a short break away from the table. According to Ms. Ruiz, Student was more likely to protest work if Mother was present in the living room where the therapy took place and required full physical prompts to sit at the table after a break. (PE-B) Student was starting to learn using an ABA approach and required frequent presentation, consistent expectations to increase skills and required continued opportunities to generalize skills learned in 1:1 sessions in other settings and with other adults. (PE-B)
· The Team met again on January 28, 2005 to address eligibility, placement and discuss the initial evaluations. (SE-31; SE-34; SE-26; PE-C) Parent and the attorney who represented her at that time were present as well as staff from Ipswich and ECN and BEACON. (SE-31) The IEP promulgated after this meeting describes Student’s strengths as enjoying music, swinging, rough house play, noticing new people in his environment, being very connected with Mother, being able to demonstrate affection through laughs and smiles, being happy and possessing relative strength with gross motor skills. (SE-26; PE-C) Student’s proposed placement would be the Doyon Preschool in Ipswich. The IEP states that Parent was provided two opportunities (January 11 and January 28) to state her concerns regarding Student but she opted to submit her concerns in writing at a later time. (SE-26; PE-C) In general, Student’s school evaluation found his developmental skills to fall in the eight to ten months range of cognitive development, seven to eight months range for social/ emotional skills, five to six months language skills, nine to ten months fine motor skills and his self-help skills fell within the nine month range. (SE-26; PE-C) Student was two years 11 months at the time of the evaluation. The speech and language evaluator found that Student demonstrated scattered communication skills up to 11 months of age and remarked that he used them as a means to regulate his physical needs. He had begun to demonstrate more reaching for objects and eye contact. The occupational therapist found Student’s fine motor skills to fall within the eight to nine months level, and the physical therapist found the gross motor skills at approximately 15 to 18 month age range with some scattered skills as far as the 23-month range. (SE-26; PE-C) As a result of these needs, Student was found eligible to receive special education services. (SE-26; PE-C)
· The January 28, 2005 IEP offered Student a combination of home and school services with ABA services taught through 1:1 instruction. (SE-26; PE-C) The IEP addressed Student’s deficiencies in communication, social/ emotional, fine and gross motor skills. ( Id .) The service grid in this IEP outlined the following services: under consultation, speech and language 2 x 60 minutes per week by the speech pathologist; ABA/ home/ school 2 x 60 minutes by Educational Consultants of New England; physical therapy consultation 1 x 30 minutes by the physical therapist; and, fine motor skills consultation 1 x 30 minutes at home and in school by the COTA. (SE-26; PE-C) Regarding direct special education services in the general classroom Ipswich proposed 5 x 2 hours of ABA services 2:1, with an ENC staff member and an Ipswich staff member to work with Student; 4 x 1 hour ABA 1:1 with an Ipswich staff, 1 x 30 minutes physical therapy group with the physical therapist; and, 4 x 30 minutes participation in the Enhanced Pre-school classroom, with an Enhanced Pre-school staff. (SE-26; PE-C) Student would also receive the following direct services outside the classroom: communication services 1 x 60 with the speech and language pathologist in school; communication services 1 x 60 with the speech and language pathologist in the home; 10 x 60 minutes ABA/ home services with an ECN staff; 1 x 30 minutes sensory/ fine motor services with the COTA in school; and, 1 x 30 minutes sensory/ fine motor services with the COTA in the home. (SE-26; PE-C) In sum, the IEP proposed 10 hours of ABA programming by ECN providers, 1 hour of speech and language and a ½ hour of occupational therapy in the home weekly as well as 10 hours of individual ABA programming provided at the Doyon School with two staff to Student, in a special cubicle with no other students, 1 hour of speech and language, ½ hour of occupational therapy and a physical therapy group in addition to four hours additional ABA programming with the Ipswich staff on a one to one basis and 2 hours weekly of inclusion in the Enhanced Pre-school accompanied by the 1:1 aide. (SE-28; PE-C) This program offered Student a total of 29 hours per week, 24 of which were ABA discrete trial services. (SE-28; PE-C) It was proposed that all services begin on February 1, 2005, Student’s 3 rd birthday. (SE-26; PE-C) Special transportation and an extended school year program were also offered. This IEP was forwarded to Parent on February 8, 2005 and on February 18, 2005, the beginning of school vacation week, Parent accepted the home services portion of the IEP and rejected the ABA, physical and occupational therapy services offered at the Doyon School and she “qualified acceptance of the 2 hour inclusion [portion of the program] in the enhanced pre-school with the 1:1 staff.” (SE-26; PE-C)
· Margaret Madeiros forwarded the partially rejected IEP to the service providers on March 2, 2005. She also attempted to set up a new IEP team meeting. (SE-25)
· An Educational Consultants of New England (ECN) discharge summary for the period covering May 2004 through February 2005, by Meagan Malboeuf describes Student’s gains during said period. (SE-29; PE-B) ECN provided intensive ABA and floor time therapy to children through one to three intervention specialists who offer the direct services and help train school personnel, day care workers and family members. (SE-29; PE-B)
· On February 4, 2005, Dr. Susan Manea of the Massachusetts General Hospital (MGH) Learning and Developmental Disabilities Evaluation and Rehabilitation Services (LADDERS) program wrote to Dr. Thomas Seman reporting the results of her consultation with Student. (SE-27; PE-A) At the time of this consultation, Student presented significant feeding issues and his major source of calories was Pediasure. He suffered from constipation and was taking a teaspoon of Generlix per day to ameliorate this problem as per Dr. Adrean Scheich. Student’s asthma issues were followed by Dr. Katherine Scheils. At the time, he was a subject in an autism study at Boston University. (SE-27; PE-A) Dr. Menea’s medical evaluation of Student was otherwise unremarkable except that Student was not feeling well and was experiencing asthma. Dr. Menea was of the opinion that Student required intensive 30 hours per week home-based individualized ABA program using a discrete trial format with specific skill sets and inclusive of record keeping. (SE-27; PE-A) Services should be offered in a quiet setting free of distractions isolated from all other activities. According to Dr. Menea, the best location to achieve this would be Student’s home. The service provider would have to be an experienced ABA trained therapist. (SE-27; PE-A) The ABA therapy should be used to promote basic skills at this juncture such as “eye contact, name responsiveness, compliance and requesting behaviors.” (SE-27; PE-A) These were necessary prerequisites for social interactions and for learning. Student would also require intensive oral motor feeding focus to address his sensory defensiveness and increase the food repertoire over time because of his history with feeding issues and failure to thrive. (SE-27; PE-A) Individual speech and language sessions were recommended three times per week to assist Student in developing a system of communication that used signs, text and vocalizations so that Student can indicate his needs and interact with his environment better. Individual occupational therapy with a sensory integration basis at least two hours per week was also an essential part of his programming. (SE-27; PE-A) The occupational therapy provider should be trained in sensory integration and have experience working with children in the autism spectrum. Dr. Menea stated that Student should master basic skills of communication and socialization before he could participate successfully in a pre-school program. (SE-27; PE-A) She wished to reevaluate Student in six months and warned that failure to provide Student with an educational program could place him at risk of developmental regression. (SE-27; PE-A)
· Shawna Carr (SE-96), COTA, made an observation in the home on March 2, 2005 while Student was receiving the ABA therapy. (SE-24) It was reported that Student liked sand, working with play-dough (but started eating it so it was taken away), responded to music (which calmed him when he was upset), ran laps around the house, liked rough housing, tickles and being thrown over the shoulder. He liked eating Teddy grams, cheese nips, Gold fish and enjoyed cheesy flavors overall. These could cause him to be constipated. Mother dressed Student and although he could hold a bottle independently, he refused to use a cup. Student could make some vocalizations and could eat a burger independently. (SE-24) He did not like shaving cream. According to Ms. Carr, Student required hand over hand assistance to do a simple puzzle, but it was noted that he required less assistance after a few attempts (SE-24)
· On March 3, 2005, Margaret Madeiros, program manager at the Winthrop School, wrote to Parent to confirm that she had received Parent’s partial rejection of Student’s IEP after the school vacation which ran from February 18 through February 28, 2005. (SE-23) Ms. Madeiros informed parent that she had arranged for Student’s therapy with ECN to begin the week of February 28 th , and that she would also arrange for one hour per week of occupational therapy with Shauna Carr and one hour of direct speech and language therapy with Kris Glennon. (SE-23) Ms. Madeiros also requested an opportunity to set up the one to one inclusion experience for Student in the Enhanced Pre-school classroom and asked that Parent get back to her with the best times for Student. (SE-23) Ipswich forwarded the partially rejected IEP to the BSEA on March 2, 2005. (SE-25)
· Kristine Glennon, Speech and Language Pathologist, joined Stacey Fisher for a session with Student on March 4, 2005. (SE-22) They discussed, in part, with Mother ways in which Student had grown. Ms. Glennon suggested that when at the mall with Student Mother use the sign for the action word as gestures could help to get Student’s attention. (Mother currently practices one-step commands at the mall such as look, stop, go, walk and eat.) (SE-22) Mother expressed concern regarding Student’s eating habits since he did not chew but rather let food dissolve in his mouth. (SE-22)
· Ms. Margaret Madeiros, Ipswich’s Program Director, wrote to Parent on March 29, 2005, to set up Student’s one to one inclusion experience as soon as Student recovered from his asthma. (SE-16) Ms. Madeiros also requested that Parent provided her view regarding the home services inclusive of the ABA therapy by ECN, the occupational therapy by Barbara Smith and the speech and language therapy offered by Kris Glennon. (SE-16) By then, Ms. Smith had only met with Student once since Parent had cancelled the other appointments because of Student’s illnesses. (SE-17) Kris Glennon had also been unsuccessful in delivering Student’s speech and language services due to Parent canceling on two out of three days the week of March 28, 2005. (SE-18) Ms. Glennon provided services on March 11, 2005, with Chrissy from ECN and on March 2, 2005, with Meagan Malboeuf. (SE-20)
· On March 29, 2005, Laurie Smith (SE-87) wrote to Margaret Madeiros sharing her concerns regarding Student’s therapies. (SE-15) Ms. Smith opined that afternoon was not the best time to work with Student because he was exhausted and cranky. Student had been sick with a cold and required use of the nebulizer. If any staff member showed any sign of illness, Parent cancelled the sessions. The ECN staff was working together with Ipswich’s speech therapist, Kris Glennon, and Meagan Malboeuf provided the weekly supervision to the ECN staff. (SE-15) Parent was not participating in the sessions except when Student was not feeling well, making it difficult for the ECN staff to keep Student under instructional control. At that time ECN staff was working on: one step directions;eye contact; imitation of gross motor; matching objects; Student requesting desired items (using PECs); puzzles. (SE-15)
· Ms. Glennon, Ipswich’s Speech and language therapist, worked with Student on April 5, 2005. (SE-13) On April 14, 2005, Parent cancelled Student’s speech session because of an appointment with the neurologist. (SE-12) Ms. Glennon gave Parent the signs for “all done, sit and help” which Parent could use to gain Student’s attention when giving him a verbal command. Also, a bathroom photo topic board was used inclusive of a toothbrush, toilet and bath for bathroom activities. (SE-13) The picture would be paired with the activity with comments about what Student was doing. On that date, the Picture Exchange System was implemented. (SE-13) Student was engaged in outdoor and indoors activities and additional pictures of his swing, slide, car and truck were taken. He was also observed to make some vocalizations. (SE-13) Parent cancelled Student’s therapy on April 6 th . (SE-14)
· Student saw Dr. Alvarez on April 14, 2005. (PE-A) He was accompanied by his brother and mother. During the visit Parent related to Dr. Alvarez that the school had decreased Student’s services to 10 hours per week and that she had noticed deterioration of Student’s behavior since the services had been reduced. (PE-A) According to Dr. Alvarez, there had been no other medical problems with Student since the time of his last evaluation. Dr. Alvarez noted that Student exhibited a lot of the autistic like behaviors while he was in his office. When Student became anxious he demonstrated stereotyped movements and when frustrated with his brother over a toy, Student went to the window and did not communicate with anyone in the room. ( Id. ) The neurological evaluation showed no changes. (PE-A)
· On or about April 25, Parent contacted Carolyn Davis in Ipswich and stated that she did not wish for Carolyn Smith, Ipswich Occupational Therapist, to continue working with Student because of a (“therapy toy”) which Ms. Smith had made for Student out of recycled material. (SE-4; PE-F) The same day Parent called Kim Rockers from ECN to request that only two providers work with Student and to state that “Stacey Fisher was a germ carrier.” (SE-7) Stacey Fisher reported that between March and April 27, 2005, Parent had cancelled numerous sessions and that she had only worked with Student once since March 1, 2005. ( Id .) Ms. Rockers informed Parent that at her request Stacey Fisher (SE-84) would no longer provide services to Student although she had ten years of experience providing ABA services to pre-school age students. (SE-11) Parent and Ms. Rockers spoke again on May 2, 2005 and Parent explained that she was looking for more “sameness” with regard to Student’s instruction. (SE-7) Parent wished for more consistency and it was for that reason that she was asking for two people instead of three to work with Student. Parent however, expressed interest in being more flexible and was now not completely opposed to three service providers working with Student. However, she insisted that Stacey Fisher was just not on the same page as Marilyn and Chrissy. (SE-7) Kim Rockers agreed to do whatever Ipswich asked her to do regarding coordination of service providers for Student. (SE-7)
· Parent called Carolyn Davis again on May 17, 2005 and stated that she had fired Laurie Smith and that she no longer wanted ECN to work with Student. (SE-4)
· The May 17, 2005 Speech and Language notes by Kris Glennon, delineate the areas addressed regarding receptive skills, imitation skills and expressive skills. (SE-6) Student was searching for sounds by looking at Ms. Glennon when she was working with him when s esaid “look at me” four out of ten times. He would look at PECs when cued to do so, when praised, and also when noisy cars drove by. Student initiated motor movement by performing actions when asked to put the block in the bucket and by putting his arms up imitating Ms. Glennon. (SE-6) Regarding expressive skills, it was reported that he looked at the provider to request more pushes or to request tickling. He also attempted to get Chrissy to push the button in his song-book. He began to differentiate vocalizations and used “ah-ee, ya-ya, ee-ee, ah-ah, and ma-ma.” He was learning the sign for help and used PECs to transition in and out of the house, to request his song-book and crackers, and others. By May 17, 2005, the staff was able to reduce the hand prompt for receiving the picture from Student. (SE-6; See also SE-9) Ms. Glennon took many pictures of items that Student encountered in his every day life to assist with transitions and in making his wishes known. The pictures included the trampoline, buzzer for haircuts, new chair, a cup, teletubbies, his work table, the animal truck, a picture of the sign for “jump”, and others to place on the easel and on his Velcro board. (SE-8) On May 10 th Student displayed good eye contact when waving goodbye. (SE-8)
· The Speech/Language Notes dated May 17, 2005 show that Parent was looking for more consistency and “sameness ” in the delivery of services and that she was dissatisfied with the number of providers working with Student and wished that no more than two people provide the ABA services. (SE-7)
· Student’s schedule shows that his day would proceed as follows:
9-11 AM – Doyon School – Individual Yeaching ABA/DDT ECN/Ipswich Staff (2:1)
11:00 AM – Go Home
11-1 PM – Home With Mom
1-1:30 PM – Home Services with ECN Staff
1:30-2 PM – Home Services with ECN Staff
2-3 PM – Home Services with ECN Staff
3-5 PM – Occupational Therapy at Home (30 minutes)
9-11 AM – Doyon School – Individual Yeaching ABA/DDT ECN/Ipswich Staff (2:1)
11:00 AM – Go Home
11-1 PM – 1:1 with Ipswich Staff not in class
1-1:30 PM – Occupational Therapy
1:30-2 PM – Small Group Classroom
2-3 PM – Home with Mom
3-5 PM – Home Services with ECN Staff – Speech at home 60 minutes (SE-1)
9-11 AM – Doyon School – Individual Yeaching ABA/DDT ECN/Ipswich Staff (2:1)
11:00 AM – Go Home
11-1 PM – 1:1 with Ipswich Staff not in class
1-1:30 PM – Speech Therapy
1:30-2 PM – Small Group Classroom
2-3 PM – Home with Mom
3-5 PM – Home Services with ECN Staff
9-11 AM – Doyon School – Individual Yeaching ABA/DDT ECN/Ipswich Staff (2:1)
11:00 AM – Go Home
11-1 PM – 1:1 with Ipswich Staff not in class
1-1:30 PM – Speech Therapy
1:30-2 PM – Small Group Classroom
2-3 PM – Home with Mom
3-5 PM – Home Services with ECN Staff
9-11 AM – Doyon School – Individual Yeaching ABA/DDT ECN/Ipswich Staff (2:1)
11:00 AM – Go Home
11-1 PM – 1:1 with Ipswich Staff not in class
1-1:30 PM – Physical Therapy
1:30-2 PM – Small Group Classroom
2-3 PM – Home with Mom
3-5 PM – Home Services with ECN Staff
The specific time and dates for the home speech and OT would be set by the therapist and Parent. (SE-1) It was proposed that when Student arrived in school he be met by the same staff member as well as an ECN staff who would walk with Student to his designated one-to-one area at the Doyon School where he would start his day by receiving two hours of daily of intensive one-to-one ABA/DTT for a total of 10 hours per week. (SE-1) Ipswich further proposed that Student spend the rest of his day at the Doyon School with the same staff member with whom he worked in the morning. During the remainder of his time in Ipswich, Student would receive one additional hour of intensive services in the separate setting and a 30-minute therapy session per day. It was further proposed that he spend up to 30 minutes with the designated aide in the pre-school setting for activities such as lunch/snack, musical activities, gross motor activities or playing with toys/sensory materials depending on the most effective activity for him. This part of the program offered a total of 8 additional service hours. The purpose of the transition plan was to help Student transition smoothly into the new setting, while allowing the staff to get to know him better. The rate of training for the Ipswich staff would also increase. (SE-1) It was expected that Student’s program would be boosted by having two staff members work with him simultaneously. Student would also receive 10 hours per week of one-on-one intensive training in the home. (SE-1)
· No services were provided between February 1 and February 25, 2005, when Parent had not accepted the IEP. Services were scheduled to begin on February 28 but were cancelled by Parent because Student was ill. (SE-2) Between February and May 27, 2005, out of a possible 82 individual one-on-one ABA/DDT sessions Student received services a total of 32 days. Forty days were cancelled by Parent for various reasons including Student being ill, Parent’s dismissal of one of ECN’s staff, Parent’s planned vacation, and Student sleeping. Additionally, sessions were cancelled due to family illness, court and other reasons. ( Id .) ECN cancelled 11 sessions. (SE-2)
· On May 26, 2005 Ipswich forwarded to Parents an invitation to attend a Team meeting scheduled for June 2, 2005 to review Dr. Menea’s report from the LADDERS program. (SE-3; SE-4)
CONCLUSIONS OF LAW
The Parties are in agreement that Student is an individual with a disability within the purview of the IDEA. The areas of disability that impact his education are not in dispute. The sole issue before me is whether Student’s needs can be appropriately addressed by Ipswich through the combination school/home program proposed for the 2005-2006 school year. Upon careful consideration of the evidence before me, I find that the IEP proposed by Ipswich for the 2005-2006 school year, with the modifications specified below, is reasonably calculated to offer Student a FAPE and offers the least restrictive environment in which Student’s needs can be addressed appropriately. In rendering this decision, I rely on the facts delineated in the Findings of Fact section and am therefore, incorporating them here by reference. My reasoning follows:
Student is a 3-year-old who presents with Pervasive Developmental Disorder- Not Otherwise Specified, low thyroid function, a neurologically based feeding disorder, and constipation. (SE-45; PE-A; Testimony of Dr. Becker) The Pervasive Developmental Disorder diagnosis was made in May 2004 after which he began to receive services through Early Intervention from BEACON and ECN. (PE-A; Testimony of Mother) Early Intervention services were first recommended for Student when he was one year of age, but Mother opted to provide the educational services herself, supplementing them with related therapies provided through the Beverly Hospital and the Hunt Center. (SE-76; Testimony of Mother) Mother terminated these therapies because Student appeared to be making little progress and because Parent did not believe that the therapists were a good match for Student. (Testimony of Mother)
Student lives with his mother and two older siblings in Ipswich, MA, the district responsible for his educational services. Mother first contacted Ipswich in September 2004. Mother agreed to share the evaluation reports she already had from Student’s doctors and the Early Intervention providers. This documentation was ultimately received by Ipswich in November 2004. (SE-48; Testimony of Ms. Madeiros, Mother) Initially, Mother refused consent to conduct evaluations of Student out of concern that too many “hands on” evaluations would be stressful and cause Student to become ill. Mother finally consented on November 23, 2004 and the evaluations and observations were done in December 2004 and January 2005. (SE-48; SE-64; Testimony of Ms. Madeiros) The observations were conducted by Barbara Smith, occupational therapist, Colleen Mulkerin, physical therapist, Linda Labo, Enhanced Pre-school teacher, Kristine Glennon, speech and language therapist, and Margaret Madeiros. (SE-49; SE-51) Also, in January 2005, Laurie Smith of ECN performed a developmental evaluation of Student. Student’s team met twice during the month of January 2005. (SE-31; SE-38) At the first meeting, the Team found Student eligible but lacked sufficient information to complete drafting of the IEP. Following an expedited evaluation period the Team met again on January 28, 2005 and developed the IEP, which is the subject of this proceeding. (SE-31)
Although Student was almost three years of age at the time of the January 2005 evaluations, he was found to be performing at the 8 to 10 month age level cognitively (with some scatter beyond his age) and at the 7 to 8 month age level in social emotional skills. (SE-26; Testimony of Ms. Smith) Communication skills were found to fall within the birth to 11-month age range. (SE-26; Testimony of Ms. Glennon) Fine motor skill development was at the 8 to 9 month age level and gross motor skills were at the 1 to 18 month age level. (Testimony of Ms. Smith, Ms. Mulkerin) These findings caused the Team to make significant revisions to the preliminary IEP drafted earlier in January. (SE-26; Testimony of Ms. Madeiros) Parent was given a proposed schedule for delivery of services and the finalized IEP was presented to her on February 1, 2005. (PE-C; SE-26; Testimony of Mother) Parent was also advised that Student could begin to receive services on February 1, 2005, or as soon as she provided consent. (Testimony of Mother) Ipswich’s narrative description of the proposed program stated:
Ipswich Public Schools proposes the enclosed educational plan for your son [Student]. [Student] will have 10 hours of ABA programming provided by Educational Consultants of New England, 1 hour of speech and language services and ½ hour occupational therapy at his home. He will also have an additional 10 hours of ABA programming provided at Doyon School in a 1:1 space with 2 adults (Ipswich staff & NEC staff), 1 hour of speech and language, 1 x 30 occupational therapy session, and a physical therapy group. He will have 4 hours additional ABA programming by Ipswich 1:1 staff and 2 hours of inclusion in the Enhanced Pre-school with his 1:1 staff. (PE-C)
The above described program offered Student 29.5 hours of home/school programming per week, with 24 hours of ABA services and 2 hours per week inclusion in the classroom, 30 minutes per week participation in a physical therapy motor group, 1 hour occupational therapy, and 2 hours of speech and language therapy. (PE-C; SE-26) The proposed program/ IEP also offered 5 hours per week of consultation for a total of 34.5 hours in services to Student. Of these, 11.5 hours would be provided in the home. (Testimony Ms. Madeiros, Ms. Glennon, Ms. Smith) The combination of home and school settings for delivery of services was geared toward providing the intense level of ABA in a distraction free environment with opportunities to generalize skills into the home. (Testimony Ms. Madeiros, Ms. Glennon, Ms. Smith) On February 1, 2005, Parent visited the Doyon School, was shown the space designated for Student adjacent to the Enhanced Pre-school classroom, and was given Student’s IEP. Services for Student would begin as soon as Mother provided parental consent. (Testimony of Ms. Davis)
On February 18, 2005, the Friday before school’s February vacation week, Parent returned a partially accepted IEP, accepting only the portions of the IEP that offered 10 hours of ABA services and the therapies in the home, as well as Student’s gradual inclusion in the Enhanced Pre-school. (SE-26; PE-C; Testimony of Mother) Parent later decided not to allow Student in any portion of the program delivered in school. (SE-26; Testimony of Mother) School reopened on Monday February 28 th and Ms. Madeiros arranged for the services to begin as soon as practicable. Services were initiated the following day, March 1, 2005. (Testimony of Ms. Madeiros, Ms. Smith, Mother)
Ipswich arranged for the ABA 1:1 services to be provided by ECN staff and the therapies were delivered by Ms. Carr, occupational therapy assistant, Ms. Barbara Smith, occupational therapist, and Ms. Glennon, speech and language therapist. (Testimony of Ms. Malboeuf, Ms. Smith, Ms. Glennon, Ms. Madeiros) All were properly certified and experienced in teaching children in the Autism Spectrum. Parent training was also offered in the areas of speech and language, occupational therapy and behavior therapy. (Testimony of Ms. Malboeuf, Ms. Smith, Ms. Glennon)
Under federal and state law and regulations, Ipswich is responsible to offer Student an individualized education program (IEP) that affords him a FAPE, and that is designed to meet his unique needs so as to enable him to make meaningful and effective progress in the least restrictive appropriate environment. 20 U.S.C. §1400 et seq.; 34 CFR §300.300 & §300.550; MGL c. 71B; 603 CMR 28.01(3), 28.02(9), 28.02(12); See In Re: Medford Public Schools, 8 MSER 329 (SEA MA 2002).
Parent disagrees with the location for provision of Student’s services and also seeks to control decisions regarding the selection of the direct service providers. (Testimony of Parent) While Parent asserts that Student’s needs can only be appropriately met in the home because of his medical and developmental issues related to autism, asthma, feeding problems and constipation, Ipswich is equally adamant that the proper manner in which to address Student’s educational needs is through a combination school/home program, which Ipswich asserts is the least restrictive appropriate environment for Student. The evidence shows that prior to Ipswich’s involvement with Student, he had made very little progress with the services offered through Early Intervention. (SE-49; Testimony of Ms. Madeiros, Ms. Labo)
As adduced earlier, the program proposed by Ipswich combines four hours per week of direct ABA therapy with an Ipswich provider, and ten hours per week in a co-treatment model (2 staff to Student) with school and ECN personnel, supervised by Meagan Malboeuf, the behavioral therapist from ECN who has been working with student since he began receiving services through early intervention. (Testimony of Ms. Malboeuf) Ms. Malboeuf would also consult to Ms. Labo, the pre-school teacher and other related therapy professionals in Ipswich. (Testimony of Ms. Malboeuf, Ms. Labo, Ms. Madeiros) While in Ipswich, the ABA therapy would be offered in an area designated exclusively for Student, located in the room where Ipswich conducts individualized services with other students, adjacent to the Enhanced Pre-school classroom. Both rooms are connected through a door outside Student’s designated area. (SE-90; SE-95; Testimony of Ms. Labo)
Ipswich’s proposed program also offers occupational therapy, physical therapy and speech and language therapy as direct services and by way of consultation at home and in school. The last piece in Ipswich’s program offers the opportunity for Student to be integrated for up to two hours per week with the other four students in the Enhanced Pre-school class. (SE-26; PE-C; Testimony of Ms. Labo)
A part of Ipswich’s program, the ABA therapy, would be carried over to a home program, which provides ten additional hours of ABA in the home with the same ECN providers who work with Student in Ipswich. This model would assure consistency and carry over between the two settings. The home component would include Parent training and consultation. This latter piece is a key component as the record provides undisputed evidence that Parent has a very special bond with Student, the child responds to her, and she is clearly a preferred adult capable of providing consistency in the implementation of portions of the skills worked on at home when the ABA providers are not there. (Testimony of Ms. Malboeuf, Mother; Ms. Smith, Ms. Glennon) With a home/school ABA model, the home component can focus on areas such as toilet training, feeding, self-care and reinforcement of the skills learned in school, while the school component can focus on other educational areas. (Testimony of Ms. Malboeuf, Ms. Smith, Ms. Glennon)
The vast majority of Student’s educational program is based on direct ABA services administered through discrete trial training programs. ABA discrete trial principles break complex tasks into minute behavioral components. Each step of the behavioral task is carefully planned and taught sequentially in an ascending mode until skill development is obtained. The goal is to obtain and increase Student’s attention and compliance with basic commands. To this end, the behavioral therapist collects data that is later analyzed so that the therapist can ascertain when the next sequential step can be introduced until the desired skill/behavior is acquired. For all of this to happen successfully, the environment in which the discrete trial training takes place must be distraction free. (Testimony of Ms. Glennon, Ms. Smith, Ms. Malboeuf)
Dr. Seman remarked that given Student’s diagnosis and medical issues, therapies should be provided in an environment where Student feels comfortable. (SE-32; PE-A) He explained that the ability of children like Student to deal with stressors was severely impaired which could result in the student decompensating, or shutting down to the outside world or to any intervention. He explained that Student could perceive therapy as stressful. Introduction to social situations should be done in a gradual manner. The location for provision of services should be a fairly quiet and private space to minimize distractibility and anxiety with some occasional exposure to social situations. (SE-32; PE-A) Dr. Seman testified that calmness in the environment was important and warned that breaking an established routine would be detrimental. (Testimony of Dr. Seman) On January 24, 2005, he concluded that Student’s services should be provided in the home, with a limited introduction to the social world at school, limited to no more than four hours per week in a classroom. He also recommended that the teachers and therapists be appropriately trained and that the student to teacher ratio be no more than 2 to 1. The amount of exposure to social situations should be decreased if Student was unable to tolerate it. (SE-32; PE-A) Dr. Castro also indicated in his November 18, 2004 report that Student would benefit from efforts to minimize distractions. He recommended that Student be educated in a “separate quiet space such as that afforded by a private cubicle.” (PE-A) During testimony, Dr. Castro’s testimony supported the program and description of the separate area created for Student in Ipswich’s proposed program.
Ms. Davis, Ms. Madeiros, and Ms. Glennon all agreed with Dr. Castro’s recommendations regarding the description of the location for provision of services in school. Student’s designated area has walls on two of its sides and partitions on the other two. The only window in the area would be covered to minimize distraction and minimal furniture and equipment would be placed in the area. (SE-952 ; SE-90) While the evidence supports a finding that the general scheme is appropriate, the cubicle is located in an area where other cubicles are located and used to provide direct services to other students. (Testimony of Ms. Labo) Therefore, in keeping with the recommendations of Dr. Castro and Dr. Seman, it will be important to monitor the noise level in this room to ascertain how the noise impacts Student and on his ability to sustain attention to task, as well as monitor the levels of distractibility. Modifications must then be made accordingly, including the possibility of moving Student to a different area.
In contrast, Ms. Glennon and Ms. Malboeuf raised concerns that Student’s home provides numerous distractions that impact negatively on the efficacy of his therapies. The house offers an open floor plan with connected rooms that becomes a sort of “oval race track” in which Student runs around in laps to avoid ABA work. Both providers testified that there were numerous other distractions that were inherent to the home, making it a less than ideal setting for provision of services: household noises such as the phone ringing are distracting; mother is a preferred adult and Student likes to get up and go looking for her; there are toys that he wishes to play with; long curtains in which Student likes to wrap himself; Student’s brother who is approximately a year older also seeks attention and likes to get involved in the therapies; people coming in and out of rooms to get a drink of water; and other distractions. (Testimony of Ms. Malboeuf, Ms. Glennon, Ms. Smith) Parent has done everything possible to help decrease the distractions but some are simply inherent to home environments and unavoidable. While services in the home are necessary for generalization of skills to other settings, most of the providers contemplated that at least a portion of the services would be delivered in the school. (PE-A; Testimony of Dr. Becker, Dr.Castro)
Regarding the opportunity for inclusion, Dr. Castro recommended that a reverse inclusion program be implemented gradually. He stated that initially, one other typically developing peer should be brought into Student’s designated area for about five minutes. As Student tolerated this, the amount of time he spends with the typically developing peer could be increased and eventually Student could be brought with his 1:1 paraprofessional into the Enhanced Pre-school classroom for short periods of time, initially five minutes, during a preferred activity. (Testimony of Dr. Castro) The duration of his stay would be increased according to his tolerance. While Ipswich’s proposed IEP program calls for up to two hours of inclusion per week, Ipswich’s witnesses agreed during the hearing that Dr. Castro’s recommendation was sound for Student and they stated that it could be implemented in Ipswich. (Testimony of Ms. Smith, Ms. Malboeuf ) Student’s participation in the weekly physical therapy motor group should be approached in the same manner. These opportunities for inclusion, albeit limited, would offer Student opportunities for socialization, modeling and for communication to be practiced in natural environments. (Testimony of Ms. Madeiros, Ms. Labo, Ms. Smith) The goal would be to slowly introduce Student to participate in circle time, music, free play and sensory motor activities among others. ( Id. )
Mother’s arguments for denying consent for Student to participate in a school program were also related to Student’s feeding issues. He was described as a picky eater who relies a great deal on Pediasure with fiber for nutrition and to avoid constipation. (Testimony of Mother) The record shows that in the last ten months Student has increased his food tolerance to include Teddy grams, Goldfish, cereal, and has begun to take bites of hamburgers at McDonald’s. While at one point in 2004, he presented with failure to thrive, this is no longer the case by account of all the physicians that have evaluated him, as well as Mother. (PE-A; Testimony of Dr. Becker, Mother, Dr. Seman) According to Dr. Seman, Student’s primary pediatrician, Student has gained and maintained weight satisfactorily since November 2004. (Testimony of Dr. Seman) Ms. Smith and Ms. Malboeuf testified that feeding is one of the activities of daily living that can and should be incorporated into Student’s discrete trial program in school (initially in his designated area and later during snack time in the classroom) as well as at home. (Testimony of Ms. Malboeuf, Ms. Smith, Ms. Labo and Ms. Madeiros) The evidence is persuasive that the feeding issue is insufficient to confine Student to the home environment, but is an area that should be addressed as part of Student’s ABA programming.
The evidence shows, consistent with Dr. Semans’s testimony, that Student cannot live on Pediasure forever, and therefore, the repertoire of foods he tolerates must be increased. Both Ms. Glennon and Ms. Malboeuf had attempted to begin working on this issue. Finding new foods Student likes, also increases the repertoire of reinforcers that can be used in the ABA therapy. (Testimony of Ms. Malboeuf, Ms. Smith) Ms. Glennon attempted to teach Student to chew and opined that he should have “chewy toys” so as to learn what his mouth could do. Chewing stimulates oral-motor skills and is a precursor for eating solid foods. (Testimony of Ms. Glennon) Both Dr. Seman and Dr. Becker supported the use of chewy toys as a way to increase feeding behaviors. Ms. Malboeuf also has attempted to place small pieces of food in Student’s lips and mouth so as to expose him to different food tastes and textures in an attempt to increase Student’s tolerance of food. (Testimony of Ms. Malboeuf) Mother however, has not been supportive of these approaches, as she was concerned that Student should be taught to eat with utensils, and because once before he attempted to eat a rock. According to Ms. Malboeuf, eating with utensils is a more advanced skill and they need to build up to it by starting first with the basic mechanics involved in eating solid foods.
Mother also raised concerns regarding Student’s history of asthma and how this impacted his availability to receive services. (Testimony of Parent) Student has asthma, which he gets when he is ill, and also has feeding and constipation issues. Mother feared that exposure to a school environment and to other students would increase Student’s exposure to germs that could ultimately cause him to become ill triggering his asthma. In the past Student has been hospitalized or treated for asthma and his last hospitalization occurred in February 2005. According to Dr. Seman, asthma tends to act up in winter but can be treated effectively with a nebulizer and occasional oral medication. (PE-A) Dr. Seman testified that in order for Student to remain healthy, an environment where germs were consistent was important. From this standpoint he opined that a home environment was ideal but also recognized the importance of limited socialization for Student and supported provision of therapies in the designated cubicle in school. (Testimony of Dr. Seman) In his opinion the proposed program would work for Student but he warned that winters might pose a challenge regarding the asthma for several years to come. ( Id. ) It is therefore possible that at times Student’s attendance may be impacted by his health and during those times his services may need to be modified. However, while Parent’s concerns over Student’s health are reasonable and understandable, Student’s respiratory issues are insufficient to warrant provision of services exclusively in the home. It is impossible to avoid some measure of exposure to allergens or germs in any setting in which Student is present. According to Parent, at present, Student tolerates interactions with the community as he goes with his mother to the beach, the grocery store, the mall, the playground, the library, post-office, into the homes of extended family members, doctors’ offices, McDonald’s and other settings. (Testimony of Mother) Clearly he is exposed to multiple germs and allergens in all of these environments. For example, at the playground he plays on the “play shaper”, on a slide/climbing set and on swings. (Testimony of Mother) Since nobody other than Student and the two ABA providers would work in Student’s designated area, the environment will be better controlled (possibly to the same extent that he is currently exposed to by Parent when taken to the mall, the playground or McDonald’s) to minimize opportunities for Student to become ill.
No service provider, including Student’s medical and neuropsychological consultants, indicated that Student required home-based services exclusively because of medical or educational needs. (Testimony of Dr. Seman, Dr. Becker) Mother’s concern that Student could get sick if he worked with people who worked with other children prompted her to fire Tracey Fisher, one of ECN’s behavior therapists who was also employed as a teacher in a school. Mother is also concerned about contamination of germs from other students. Dr. Seman agreed during his testimony that children may acquire colds and other minor illnesses when they enter school until their immunological system develops tolerance. The record shows that at the present time, Student has no illnesses that would prevent him from leaving his house or that would warrant provision of services in the home exclusively.
Furthermore, Ipswich can take steps to ensure that the area and surfaces where Student works is cleaned daily, and that those working with Student wash their hands before and after working with him. Also, Ipswich has a nurse on site at the Doyon School, who would be able to monitor Student’s medical needs, administer medication and even give Student the nebulizer if needed. (Testimony of Ms. Madeiros) There is simply insufficient evidence to warrant provision of services to Student exclusively in the home for medical or educational reasons. Such a setting is highly restrictive and unwarranted given the facts of this case.
Federal and state special education law mandate that opportunities for mainstreaming be provided to the extent appropriate, as children must be educated in the least restrictive environment. 603 CMR 28.023 & 28.06 (b)4 . Clearly, a home environment constitutes a highly restrictive placement because of a student’s isolation from peers. The overwhelming majority of the witnesses at the hearing supported a combination of school and home based programming. (Testimony of Dr. Castro, Ms. Madeiros, Ms. Smith, Ms. Malboeuf, Ms. Glennon, Ms. Labo, Dr. Becker) Neither Dr. Seman nor Dr. Becker, two of Student’s physicians, found any medical reason why a portion of Student’s services could not be offered in Ipswich. (Testimony of Dr. Seman, Dr. Becker) Dr. Castro testified that he supported the combination of services offered by Ipswich, as well as provision of services from multiple providers, all of whom were properly certified, trained and supervised.
Another concern raised by Parent was the numerous providers assigned to work with Student. However, the facts of this case do not show that Student gets anxious because he works with numerous people, and according to the professionals, the real issue is consistency in the delivery of services. Dr. Alvarez mentioned in his report that Student was very receptive to meeting his service providers when they were introduced back in the summer of 2004. (PE-A) In November 2004, Dr. Castro noted that Student was starting to show interest toward same age peers and even if he was not actively involved with them, exposure for short periods of time could enhance the overall scope of his educational program. This view was shared by Ms. Malboeuf, Ms. Smith and Ms. Madeiros. The evidence shows that Student is receptive to working with numerous adults and has begun to enjoy some limited play-time with his brother. (Testimony of Mother, Ms. Malboeuf, Ms. Smith and Ms. Madeiros) Over the past ten months, Student has worked with over eight different adults and it was reported that he was able to work with them. (Testimony of Ms. Malboeuf, Ms. Smith, Ms. Madeiros, Ms. Glennon, Mother)
Over time, Mother has stated her preference that no more than two ABA professionals work with Student. Dr. Castro however, found it acceptable that three ABA therapists provide approximately 30 hours of instruction. He opined that the critical determinant as to the number of providers working with Student was the level of consistency in the delivery of ABA services provided to Student. (Testimony of Dr. Castro) He also found desirable, in keeping with Ipswich’s proposal, that the same provider who worked with Student in school worked with him at home. ECN staff would work with Student in school to offer the ten hours of ABA in a co-treatment model with a behavior therapist from Ipswich. The Ipswich therapist would then work with Student four additional hours in school and would accompany him into the inclusion settings. ECN would also be the sole provider of Student’s services in the home. All of the providers would be supervised by Ms. Malboeuf who in turn is supervised by Ms. Laurie Smith. (Testimony of Ms. Madeiros, Ms. Smith, Ms. Malboeuf) The providers would also use the already established e-mail system to maintain communication with the rest of Student’s therapists. (SE-5; SE-10; SE-12; SE-15; Testimony of Ms. Glennon, Ms. Madeiros). The evidence shows that the number of providers assigned by Ipswich to work with Student is appropriate in order to assure consistency in the delivery of services. The evidence further shows that all of the providers selected possess the appropriate qualifications (that is certification, credentials, experience and training) required and desired. Some in fact possess greater qualifications than those recommended by Dr. Castro. (Testimony of Dr. Castro, Ms. Smith, Ms. Malboeuf) In at least one instance this experience served to modify the PECS program which was originally used by the BEACON providers to one using pictures of the actual items/actions as opposed to icons, resulting in greater success for Student. (SE-49; Testimony of Ms. Glennon)
Mother has terminated services by certain service providers (i.e., Stacey Fisher and Ms. Carr), requested that only certain providers work with Student and has attempted to limit the number of providers that work with him. (SE-14; Testimony of Mother, Ms. Madeiros) She attempted to cancel all services by Ms. Barbara Smith, the occupational therapist, because she disagreed with the toy made of household materials brought by her to use in therapy with Student. (PE-F; Testimony of Mother; Ms. Madeiros) 603 CMR 28.06(2)(c)1 confers the decision to select specific instructional personnel on the school district.5 While it is desirable and necessary for Parent’s observations and opinions to be considered, the ultimate decision regarding selection of service providers lies with the school district.
There is no question that Student’s transition into a program that involves his coming into school must be carefully planned. To avoid stress to the child through over-stimulation or separation from Mother, Ipswich asserted that a gradual and appropriate transition to school could be implemented. Initially, Student could come to school with his mother and stay for a short period of time. (Testimony of Ms. Madeiros) The length of his day would be extended with each passing day as the presence of his mother would be phased out over a period of approximately one week. According to Ms. Madeiros, the risk of not phasing Mother’s presence out within a relatively short period of time is that she would otherwise become a part of the Student’s school program. (Testimony of Ms. Madeiros) Later, as Student felt more comfortable, he could be safely transported to school and upon arrival, his behavioral therapist could meet him at the curb and walk him to his designated area. Student has difficulty negotiating stairs, but his designated area is located on the first floor of the Doyon School. (Testimony of Mother, Ms. Madeiros) Presence in school would offer Student an opportunity to observe, interact with and model other children in a protected and controlled manner before initiating his daily ABA therapy routine. ( Id. )
The record shows that even with the limited amount of services provided to Student since March 2005, he has evidenced progress especially in regard to his communicative abilities. He has increased his vocalizations from two to nine consonants and four or five vowels, he requires fewer physical prompts than he did, his eye contact has improved and eye gaze has increased. He is always looking at the reinforcer, he is able to engage in the PECS system using photographs, he has begun to imitate vocalizations, can do an insert type puzzle, and responds better to his name. Although he still requires prompts he responds 40-50% of the time. (SE-6; SE-8; SE-9; SE-91; Testimony of Ms. Malboeuf, Ms. Glennon, Dr. Becker)
The overwhelming weight of the evidence supports a finding that the appropriate program for Student is a combination of school and home services such as the one offered by Ipswich.
Parent also raised concerns regarding missed ABA sessions. The record is clear that the missed sessions were a result of Student being ill, Parent’s appointments and ECN and Ipswich staff being unavailable. (SE-2; Testimony of Mother) In this regard, another benefit of delivering a portion of Student’s services in the school will be facilitation of consistency and attendance for provision of services by both Student and staff. To the extent that any of Student’s sessions are cancelled as a result of unavailability of Ipswich or ECN staff, regardless of the reason, these sessions must be made up. Parent and Ipswich shall meet to discuss exactly how many of the sessions of the accepted portions of the IEP have been cancelled as a result of the providers’ unavailability, and a schedule to make up these sessions shall be implemented forthwith.
During the hearing Mother stated that she was not ready for Student to be transitioned into a school program. It was clear that by the close of the hearing she was still not ready for Student to transition into spending so many hours outside the home. To this end, she has made numerous alterations in the home to make the overall environment more appropriate for Student. (Testimony of Mother) There is no doubt that she loves and cares enormously for her child. The question however, is not whether Mother is ready for a transition, but rather whether Student is ready for it. The evidence shows that Student is capable of learning and that his speed of acquisition of skills with the proper supports in place is on the rise. The credible evidence provided by Ms. Malboeuf, Ms. Smith, and Ms. Glennon shows that even when he was receiving fewer than ten hours of services per week, he was making some progress. Student’s behavior is convincing that he is ready for more. There is no persuasive evidence to support Mother’s position that his education could not be effectively provided in the combination school/home program proposed by Ipswich and endorsed by almost all of the providers, including Dr. Castro, Dr. Seman and Dr. Becker, Parent’s experts. Time is of the essence. Therefore, it is incumbent upon Parent and the school district to make a proverbial “leap of faith” and work together on a transition plan that allows Student to avail himself of the services he desperately needs immediately. Some bumps in the road are to be expected and therefore, some flexibility may need to be worked into the plan, but Student’s services must not be delayed further and must be consistently delivered in the home and in the school.
Mother presented insufficient evidence to support a different outcome. Sadly, in a zealous attempt to assure services for her son, Mother made decisions which have deprived Student of appropriate services which could have been delivered since February 2005. Therefore, Ipswich must now implement the proposed IEP with a reduction in the amount of inclusion to be implemented in a reverse gradual mode, as described by Dr. Castro and Ms. Madeiros, as well as monitoring the level of noise and distraction in the area designated for Student consistent with this decision and in keeping with the recommendations made by Dr. Seman, Dr. Castro, Ms. Malboeuf and Ms. Smith.
1. Ipswich shall provide Student services under the February 1, 2005 IEP with the modifications specified above.
So Ordered by the Hearing Officer,
Rosa I. Figueroa
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.
The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days from receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).
Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
September 6, 2005
Two additional continuances for submission of closing written arguments were granted at the written request of the Parties because one of the stenographers was delayed in delivering the transcripts of the Hearing.
The picture of the room shows a table, two small chairs and a bookcase, which contains items that would be cleared before the room was used with Student. (SE-95)
Least restrictive environment (LRE) shall mean the educational placement that assures that, to the maximum extent appropriate, students with disabilities, including students in public or private institutions or other care facilities, are educated with students who are not disabled, and that special classes, separate schooling, or other removal of students with disabilities from the general education environment occurs only when the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 603 CMR 28.02.
Least restrictive environment (LRE ). The school district shall ensure that, to the maximum extent appropriate, students with disabilities are educated with students who do not have disabilities, and that special classes, separate schooling, or other removal of students with special needs from the general education program occurs only if the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily. 603 CMR 28.06(b).
The school district shall determine specific instructional personnel and shall work jointly with the Team to arrange the specific classroom or school, in order to implement the placement decision and to assure that services begin promptly when parental consent to the IEP and placement has been received.